This
case comes before the Court on defendant's motion to
dismiss that was converted by this Court into defendant's
motion for summary judgment (#6, #50), and plaintiffs'
motions for leave to file amended complaint (#51) and to
vacate order treating defendant's motion to dismiss as a
motion for summary judgment and motion for discovery (#52).
The motions are briefed and ripe for disposition. Because the
Court grants plaintiffs' motion for leave to file an
amended complaint, the plaintiffs' motion to vacate this
Court's previous order is necessarily granted.
Defendant's converted motion for summary judgment is
therefore denied as moot.

I.
Factual Background

As more
fully discussed in this Court's previous memorandum and
order (#50), plaintiffs allege that their peach orchard was
damaged when defendant commercially released its
genetically-engineered and dicamba-resistant cotton and
soybean seeds without a corresponding herbicide. Plaintiffs
contend that defendant violated standard industry practice
and committed a number of tortious acts by essentially
releasing only half of the complete crop system. Because
defendant only released half of the complete crop system,
plaintiffs allege, it was reasonably foreseeable that
third-party farmers who purchased defendant's seeds would
illegally spray dicamba - a generic herbicide not developed,
manufactured, distributed, or sold by the defendant - onto
those seeds to prevent weed growth. Dicamba is a highly
volatile herbicide that is prone to drift, a term used to
denote the airborne movement of herbicide spray particles to
non-target or neighboring sites, sometimes miles away.
Dicamba is toxic to all broadleaf plants such as fruits,
nuts, vegetables, and notably, cotton and soybeans that are
not genetically engineered to withstand it. In this case,
plaintiffs allege that unidentified farmers who purchased
defendant's seeds illegally sprayed dicamba onto their
own crops and that dicamba drifted onto plaintiffs'
crops, causing millions of dollars in damage.

II.
Procedural Background

On
December 30, 2016, defendant moved to dismiss plaintiffs'
complaint (#6) for, inter alia, lack of proximate
causation. This Court, upon consideration of the product use
labels attached to defendant's seed packaging, converted
defendant's motion to dismiss to a motion for summary
judgment (#50). Within the same memorandum and order, this
Court granted the parties an additional twenty-one days to
present other materials and additional briefing. In response,
plaintiffs filed their motions for leave to file an amended
complaint (#51) and to vacate this Court's order treating
defendant's motion to dismiss as a motion for summary
judgment (#52). Within their motion for leave to file an
amended complaint, plaintiffs seek leave to amend their
original complaint to assert a new claim of civil conspiracy,
incorporate relevant facts and allegations previously
unavailable to plaintiffs prior to filing, and add additional
allegations obtained in the ordinary course of this
litigation. One such additional allegation, the basis of
plaintiffs' proposed civil conspiracy claim, is that
defendant's “representatives made a practice of
directing farmers who purchased the Xtend seeds to illegally
spray dicamba to their Xtend crops to protect their
crops.” Pl. Am. Comp. ¶ 124.

Specifically,
plaintiffs submit the testimony of one such farmer who
purchased defendant's dicamba-resistant cotton seeds and
admitted to illegally spraying dicamba over the top of his
crops. The farmer testified before the Arkansas State Plant
Board on the allegation that his illegal action of spraying
dicamba on his property damaged his neighbor's
non-dicamba-resistant crops. The farmer's cotton farm is
located in the same county as plaintiffs' orchards.
Further, the farmer testified that a representative of
defendant instructed him that he could spray dicamba over the
top of the cotton that emerged from defendant's
dicamba-resistant cotton seeds.

III.
Legal Standard

Under
the Federal Rules of Civil Procedure, a party may amend its
pleading once as a matter of course under specified
conditions that are not applicable here. For all other
amendments, Rule 15(a)(2) provides “a party may amend
its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” However, parties
do not have an absolute right to amend their pleadings, even
under this liberal standard. Sherman v. Winco Fireworks,
Inc.,532 F.3d 709, 715 (8th Cir. 2008). Whether to
grant a motion for leave to amend is within the discretion of
the court. Popoalii v. Correctional Med. Servs., 512
F.3d 488, 497 (8th Cir. 2008).

A
district court appropriately denies a movant for leave to
amend if there are compelling reasons such as “undue
delay, bad faith, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
nonmoving party, or futility of the amendment.”
Id. “[A] party is not entitled to amend a
complaint without making a showing that such an amendment
would be able to save an otherwise meritless claim.”
Jackson v. Riebold, 815 F.3d 1114, 1122 (8th Cir.
2016) (quoting Plymouth Cnty., Iowa v. Merscorp,
Inc., 774 F.3d 1155, 1160 (8th Cir. 2014). In regards to
the futility of a proposed amendment, “[d]uplicative
and frivolous claims are futile.” Reuter v. Jax
Ltd., 711 F.3d 918, 922 (8th Cir. 2013).

IV.
Discussion

Plaintiffs
contend that the Court should grant their motion for leave to
amend because the amendment will not cause undue delay, it is
not filed in bad faith, it will not prejudice defendant, and
it is not futile. Plaintiffs assert that because no
scheduling order or trial date has been set in this action,
amendment will not disturb any guidelines set by this court.
Additionally, as oftentimes occurs through the course of
litigation, plaintiffs obtained new evidence they contend
support their claims and are relevant to this Court's
proximate causation analysis. Further, plaintiffs claim that
because this matter has not reached an advanced stage of
litigation, plaintiffs have not conducted meaningful
discovery, and no trial date has been set, defendant will not
be prejudiced via amendment. Finally, plaintiffs maintain
that amendment will not be futile because it complies with
the requirements of Rule 12 of the Federal Rules of Civil
Procedure.

Defendant,
nearly exclusively, focuses on the futility of
plaintiffs' proposed amendment, asserting that
plaintiffs, even with amendment, still cannot establish
requisite elements to hold defendant liable for
plaintiffs' harm. In support, defendant states that it
cannot be held liable for the damage caused by a product it
did not manufacture, distribute, sell, or apply. Also,
defendant claims that the presence of defendant's
warnings on all seed packages sold preclude any finding that
it was foreseeable that the seed purchasers would use dicamba
illegally. Finally, defendant contends that it owed no duty
to plaintiffs to prevent the harm caused by the third-party
farmers' use of dicamba, which as noted, was not
manufactured or sold by defendant.

Although
the Court maintains reservation about whether defendant's
action or inaction proximately caused plaintiffs'
injuries, the allegation that defendant's representatives
instructed seed-purchasing farmers to illegally spray dicamba
on the defendant's seeds, if true, would seemingly negate
the effectiveness of the product use labels attached to
defendant's seeds in addition to altering the proximate
causation analysis of this case. Rule 15(a)(2) explicitly
states that a court should freely give leave when justice so
requires. Here, the Court holds that plaintiffs' motion
for leave to amend its ...

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